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August 6, 2007
FISA leak investigation:An interesting Development (important update)
Newsweek is reporting an interesting development in the FISA leak investigation:
Aug. 13, 2007 issue - The controversy over President Bush's warrantless surveillance program took another surprise turn last week when a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice's Office of Intelligence Policy and Review (OIPR)-the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm's desktop computer, two of his children's laptops and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told NEWSWEEK the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since The New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants.
For some quick background on this investigation, see my article from early 2006. Tom Maguire notes that Mr. Tamm made a contribution to the DNC in 2004. Elsewhere, the JOM'ers have turned up these tidbits on Mr. Tamm and the OIPR where he was once employed. There's a blog comment from a Thomas Tamm from Nov 2006, critical of the Bush Admin not calling Iraq a Civil War in sarcastic terms. Same guy? If so he's a lib with the so called "Shadow Gov't".
Name: Thomas M. Tamm
Hometown: Potomac, Maryland USA
Dear Eric: Is not the administration's position that they would not permit the U.S. Attorney to prosecute a Congressional Contempt referral an implicit admission that they allow politics to impact prosecutions? They are admitting that they would interfere with the independent judgment of a prosecutor on a specific case. I suggest that this is precisely what the firings of the U.S. Attorneys are ultimately about. Yes, they serve at the pleasure of the president, but they do not prosecute at the pleasure of the president. The White House is guilty of taking the blindfold off lady justice, not just covering her breasts. I am a former DOJ lawyer, for what that is worth.
from the 9/11 Commission Rpt p.95 (?)
But the prosecution of Aldrich Ames for espionage in 1994 revived concerns about the prosecutors' role in intelligence investigations.The Department of Justice's Office of Intelligence Policy and Review (OIPR) is responsible for reviewing and presenting all FISA applications to the FISA Court. It worried that because of the numerous prior consultations between FBI agents and prosecutors, the judge might rule that the FISA warrants had been misused. If that had happened, Ames might have escaped conviction. Richard Scruggs, the acting head of OIPR, complained to Attorney General Janet Reno about the lack of information-sharing controls. On his own, he began imposing information-sharing procedures for FISA material. The Office of Intelligence Policy and Review became the gatekeeper for the flow of FISA information to criminal prosecutors.
I also remember that OIPR was the stumbling block in the Moussaoui case. So FISA seemed to be working fine prior to 1994, Gorelick et al decide to tweak it, and now it has become part of the problem. I think I'm starting to understand...and this guy Tamm just happened to be in that shop.
I do not know how long Mr. Tamm worked at DoJ but he received an award in 2000,which means he was a holdover from the prior Administration.
Last week we noted that Secrecy News reported that DoJ has announced that is determined that journalists could be prosecuted under the Espionage Act for publishing classified information.
Update: Tamm works at the EqualJustice USA A.J. Strata reveals:
I have a feeling that some senior Dems are very concerned about what might come down next summer. One of the interesting aspects of this case it how a reporter obtained the contents of a letter so sensitive that it was hand written and only two copies existed (one in the office of the VP who was the addressee, and the other in the office of Sen. Rockafeller, who was the author). I seriously doubt that information came from the office of the VP.
Mr. Tamm may have been one of the original leakers, but there were confirming sources at the FISA Court and in the Senate who could become significant political liabilities if indictments were filed or unsealed in 2008.
With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters-James Risen and Eric Lichtblau-might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.
If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison.
Back when the NSA leak first occurred, I rated the probability of an indictment of the Times at somewhere between 0 and 1 percent. Today, with the Bush administration in disarray, and Alberto Gonzalez powerless, the probabilities have plummeted to .000001 percent. But a contempt citation is another kettle of fish. With the Judith Miller precedent both fresh and firmly fixed in law, the NSA-leak case might suddenly become very interesting.